When determining family law disputes involving children, courts must always put the child’s best interests first. One of the key changes made to the Divorce Act in 2021 was the amended criteria for courts to consider in the analysis of a child’s best interests – including any family violence concerns and their impact on a child’s wellbeing. As a result of these changes, family violence considerations have played a larger role when courts assess parenting disputes, including issues of parenting time, decision-making responsibility, and mobility.

What is Family Violence?

The federal government has created a Divorce and Family Violence Fact Sheet that provides detailed examples of conduct that constitutes family violence. This includes:

  • Physical abuse
  • Sexual abuse
  • Threats to kill or injure another person
  • Harassment and stalking
  • Failure to provide the necessities of life
  • Psychological abuse
  • Financial abuse
  • Threats to kill or harm an animal or damage property
  • Actually killing or harming an animal or damaging property

Family Violence & The Best Interests of the Child

The Divorce and Family Violence Fact Sheet explains that children are harmed by experiencing violence between family members, even when the violence is not directed at the child themselves. It notes the long-term effects of family violence on children:

Children who experience family violence can suffer physical and psychological harm. Family violence can change their brain development, potentially leading to the development of emotional, cognitive, behavioural and social problems that can last a long time.

Courts must consider any history of family violence when determining the best interests of a child in a family law matter. Section 16 of the Divorce Act requires judges to consider the impact of family violence on:

  • the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
  • the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child.

Evidence of Family Violence

The federal Divorce and Family Violence Fact Sheet also describes evidence that can be used to substantiate claims of family violence, including:

  • Hospital or medical records
  • Sworn affidavits from individuals who have experienced or witnessed the abuse, or its effects
  • 911 calls
  • Photos of injuries
  • Recordings of abuse
  • Related court proceedings, including:
    • Criminal convictions for assault of a child or a crime against another family member
    • Child protection orders

Case Example: Balancing Family Violence Concerns Between Parents

In the recent case of MBF v. MNH, the parents were involved in a high-conflict dispute over their four-year-old child, AA. After separating in 2020, the parents initially agreed to a shared parenting schedule. However, the cooperation between the parties deteriorated, and in February 2021, both parents sought day-to-day parenting time with the child. The mother also brought a mobility application to relocate with the child to Saskatoon, which was opposed by the father.

The mother alleged that the father had exhibited controlling and coercive behaviour towards her and argued he could pose a threat of violence to AA. As evidence, the mother pointed to communications from the father in which he had threatened to distribute a sexually explicit video of the mother. Additionally, the father made social media posts in which he had publicly announced the mother’s pregnancy with her new partner.

The mother also claimed that the father’s refusal to consent to her request to relocate with AA to Saskatoon was controlling behaviour. However, the court disagreed, noting that he had a right to refuse the request.

The father raised concerns about the mother’s new partner, CW. He pointed to an existing no-contact order between CW and AA over concerns that CW posed a serious risk due to a past history of domestic violence. The father claimed the mother had been unable or unwilling to abide by the no-contact order, permitting CW to come into contact with AA on multiple occasions.

The Court of Appeal agreed that the father’s behaviour towards the mother constituted a form of violence. However, the court found that the father’s “rephrensible” actions were not directed towards AA, and the father was still able to care for AA and meet the child’s needs.

Given the concerns of CW’s history of family violence, the court confirmed the chamber judge’s decision to deny the mother’s motion to move with AA. The parents are required to abide by a court-ordered shared parenting schedule, with day-to-day parenting time to the father and supervised parenting time for the mother.

Contact Mincher Koeman in Calgary for Proficient Advocacy in High-Conflict Parenting Disputes

Mincher Koeman‘s family lawyers have extensive experience serving parents in a variety of disputes, including issues surrounding mobility, decision-making, and parenting time. We are passionate and dedicated advocates, and we work tirelessly on behalf of our clients. Further, we often represent clients in situations involving family violence, revenge porn, child protection concerns.

Mincher Koeman is located in Calgary and proudly represents clients at all levels of court throughout Alberta. If you are involved in a high-conflict parenting dispute, reach out online or call us at 403-910-3000 to discuss your matter with one of our compassionate family lawyers.

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Calgary, AB T2P 3H6

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